Exhibit 10.3.6
EMPLOYMENT AGREEMENT
(XXXXXX)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXXXX X. XXXXXX ("Employee"). W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Senior Vice
President, Procurement and Business Development. The Employee hereby accepts
such employment and agrees to devote all of his business time and his best
efforts to the business of Employer and as may be necessary to perform his
duties in accordance with the policies and budgets established from time to time
by Employer and its Board of Directors and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of Two Hundred Twenty-Five Thousand
($225,000) Dollars per year (or such greater amount as Employer may from time to
time determine), payable periodically in accordance with Employer's usual
executive payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to One Hundred
Thousand ($100,000) Dollars for each fiscal year (ending October 31/st/)
provided that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and
actually engaged in performing duties, at the close of such
fiscal year, and
(iii) Employer's financial statements for such year, as prepared
by its independent public accountants, show a positive net
income available for common stock, as determined in
accordance with generally accepted accounting principles
consistently applied, but after adding back any non-cash
charges for post-employment benefits and before this bonus
and bonuses provided for in all other executive employment
agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
2 (c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not in default of
this Agreement as provided in Section 9, Employer shall continue Employee's
salary as defined in Section 2(a) for the remaining period of the Employment
Term, but in no case less than twelve months following termination of
employment. The provisions of Sections 1.0 through 4.0 of the AM General Salary
Continuation Plan shall not have application in the event of such a termination
of employment. In the event of a termination of employment under this
Subsection, Employee shall not be entitled to receive any annual bonus provided
for in Section 2(b) or to any proration thereof. The provisions of this
Subsection shall not apply in the event of Early Termination of Employment Term
on Disability or Death as provided by Section 5.
2
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be located in the South Bend, Indiana area.
4. Travel; Expenses. The Employee shall engage in such travel as may
reasonably be required in connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of
illness or other incapacity (including incapacity because of substance abuse) to
render to the Employer the services required of him hereunder for a period of
two months (during which the Employer shall continue the Employee's compensation
at the rates herein provided), the Employer may, in its discretion, give one
month notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $100,000 annual bonus provided for in
Section 2(b) prorated for the period from the
3
startof the fiscal year to date of termination, provided that the
requirements of Subsections 2(b)(i) and (iii) have been met for
such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information
about the business and affairs of the Employer (including, without limitation,
business plans, product design and specifications, financial, engineering and
marketing information and information about costs, manufacturing methods,
suppliers and customers) constitute "Employer Confidential Information."
Employee acknowledges that he will have access to and knowledge of Employer
Confidential Information, and that improper use or revelation of same by the
Employee during or after the termination of his employment by the Employer could
cause serious injury to the business of the Employer. Accordingly, the Employee
agrees that he will forever keep secret and inviolate all Employer Confidential
Information which comes into his possession, and that he will not use the same
for his own private benefit, or directly or indirectly for the benefit of
others, and that he will not disclose such Employer Confidential Information to
any other person except as necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and
for two years after the end of the Employment Term (the "Non-Competition
Period"), the Employee will not (whether as an officer, director, partner,
proprietor, investor, associate, employee, consultant, adviser, public relations
or advertising representative or otherwise), directly or indirectly, be engaged
in the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation
contained in this paragraph 6 is too extensive to be legally enforceable, then
the parties hereby agree that the scope and duration (not greater than that
provided for herein) of such limitation shall be the maximum scope and duration
which shall be legally enforceable and the Employee hereby consents to the
enforcement of such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him ofthe provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee. If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon
the Employer; or
(ii) breach his obligations under this Agreement and fail to cure
such breach within five (5) days after written notice thereof;
or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice; or
(v) engage in any other acts of gross misconduct against employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year period,
on each expiration date, unless either party shall have theretofore given at
least 90 days prior written notice of termination. Any extension shall be on the
terms in force immediately preceding said extension, unless otherwise agreed in
writing.
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Employer:
----------- -----------
Xxxxxx X. Xxxxxx AM General Corporation
00000 Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
6
with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Employer shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Employer.
7
14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
__________________________ By ______________________
Witness: EMPLOYEE:
________________________ _________________________
Xxxxxx X. Xxxxxx
8
SCHEDULE A
XXXXXX X. XXXXXX/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
-----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Club Membership Program
*AMG Executive Wellness Program
9
EMPLOYMENT AGREEMENT
(XXXXXXX)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXX X. XXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Senior Vice
President and Chief Financial Officer. The Employee hereby accepts such
employment and agrees to devote all of his business time and his best efforts to
the business of Employer and as may be necessary to perform hisduties in
accordance with the policies and budgets established from time to time by
Employer and its Board of Directors and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of Two Hundred and Twenty-Five Thousand
($225,000) Dollars per year (or such greater amountas Employer may from time to
time determine), payable periodically in accordance with Employer's usual
executive payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to One Hundred
Thousand ($100,000) Dollars for each fiscal year (ending October 31/st/)
provided that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and actually
engaged in performing duties, at the close of such fiscal year,
and
(iii) Employer's financial statements forsuch year, as prepared by
its independent public accountants, show a positive net income
available for common stock, as determined in accordance with
generally accepted accounting principles consistently applied,
but after adding back any non-cash charges for post-employment
benefits and before this bonus and bonuses provided for in all
other executive employment agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
2 (c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not in default of
this Agreement as provided in Section 9, Employer shall continue Employee's
salary as defined in Section 2(a) for the remaining period of the Employment
Term, but in no case less than twelve months following termination of
employment. The provisions of Sections 1.0 through 4.0 of the AM General Salary
Continuation Plan shall not have application in the event of such a termination
of employment. In the event of a termination of employment under this
Subsection, Employee shall not be entitled to receive any annual bonus provided
for in Section 2(b) or to any proration thereof. The provisions of this
Subsection shall not apply in the event of Early Termination of Employment Term
on Disability or Death as provided by Section 5.
2
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be located in the South Bend, Indiana area.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of
illness or other incapacity (including incapacity because of substance abuse) to
render to the Employer the services required of him hereunder for a period of
two months (during which the Employer shall continue the Employee's compensation
at the rates herein provided), the Employer may, in its discretion, give one
month notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $100,000 annual bonus provided for in
Section 2(b) prorated for the period from the
3
start of the fiscal year to date of termination, provided that
the requirements of Subsections 2(b)(i) and (iii) have been met
for such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Employer (including, without limitation, business
plans, product design and specifications, financial, engineering and marketing
information and information about costs, manufacturing methods, suppliers and
customers) constitute "Employer Confidential Information." Employee acknowledges
that he will have access to and knowledge of Employer Confidential Information,
and that improper use or revelation of same by the Employee during or after the
termination of his employment by the Employer could cause serious injury to the
business of the Employer. Accordingly, the Employee agrees that he will forever
keep secret and inviolate all Employer Confidential Information which comes into
his possession, and that he will not use the same for his own private benefit,
or directly or indirectly for the benefit of others, and that he will not
disclose such Employer Confidential Information to any other person except as
necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and for two
years after the end of the Employment Term (the "Non-Competition Period"), the
Employee will not (whether as an officer, director, partner, proprietor,
investor, associate, employee, consultant, adviser, public relations or
advertising representative or otherwise), directly or indirectly, be engaged in
the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 6 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon
the Employer; or
(ii) breach his obligations under this Agreement and fail to cure
such breach within five (5) days after written notice thereof;
or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice; or
(v) engage in any other acts of gross misconduct against employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year period,
on each expiration date, unless either party shall have theretofore given at
least 90 days prior written notice of termination. Any extension shall be on the
terms in force immediately preceding said extension, unless otherwise agreed in
writing.
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Employer:
----------- -----------
Xxxx X. Xxxxxxx AM General Corporation
00000 Xxxxxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
6
with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Employer shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Employer.
7
14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
___________________________ By ________________________
Witness: EMPLOYEE:
___________________________ ___________________________
Xxxx X. Xxxxxxx
8
SCHEDULE A
XXXX X. XXXXXXX/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
-----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Club Membership Program
*AMG Executive Wellness Program
9
EMPLOYMENT AGREEMENT
(XXXXX)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXXX XXX XXXXX ("Employee").
W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Vice President -
H2 Operations and Special Projects. The Employee hereby accepts such employment
and agrees to devote all of his business time and his best efforts to the
business of Employer and as may be necessary to perform his duties in accordance
with the policies and budgets established from time to time by Employer and its
Board of Directors and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of Two Hundred and Twenty-Five Thousand
($225,000) Dollars per year (or such greater amount as Employer may from time to
time determine), payable periodically in accordance with Employer's usual
executive payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to One Hundred
Thousand ($100,000) Dollars for each fiscal year (ending October 31st) provided
that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and actually
engaged in performing duties, at the close of such fiscal
year, and
(iii) Employer's financial statements for such year, as prepared by
its independent public accountants, show a positive net income
available for common stock, as determined in accordance with
generally accepted accounting principles consistently applied,
but after adding back any non-cash charges for post-employment
benefits and before this bonus and bonuses provided for in all
other executive employment agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
2 (c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not in default of
this Agreement as provided in Section 9, Employer shall continue Employee's
salary as defined in Section 2(a) for the remaining period of the Employment
Term, but in no case less than twelve months following termination of
employment. The provisions of Sections 1.0 through 4.0 of the AM General Salary
Continuation Plan shall not have application in the event of such a termination
of employment. In the event of a termination of employment under this
Subsection, Employee shall not be entitled to receive any annual bonus provided
for in Section 2(b) or to any proration thereof. The provisions of this
Subsection shall not apply in the event of Early Termination of Employment Term
on Disability or Death as provided by Section 5.
2
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be located in the South Bend, Indiana area.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of illness
or other incapacity (including incapacity because of substance abuse) to render
to the Employer the services required of him hereunder for a period of two
months (during which the Employer shall continue the Employee's compensation at
the rates herein provided), the Employer may, in its discretion, give one month
notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $100,000 annual bonus provided for in
Section 2(b) prorated for the period from the
3
start of the fiscal year to date of termination, provided that
the requirements of Subsections 2(b)(i) and (iii) have been met
for such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Employer (including, without limitation, business
plans, product design and specifications, financial, engineering and marketing
information and information about costs, manufacturing methods, suppliers and
customers) constitute "Employer Confidential Information." Employee acknowledges
that he will have access to and knowledge of Employer Confidential Information,
and that improper use or revelation of same by the Employee during or after the
termination of his employment by the Employer could cause serious injury to the
business of the Employer. Accordingly, the Employee agrees that he will forever
keep secret and inviolate all Employer Confidential Information which comes into
his possession, and that he will not use the same for his own private benefit,
or directly or indirectly for the benefit of others, and that he will not
disclose such Employer Confidential Information to any other person except as
necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and for two
years after the end of the Employment Term (the "Non-Competition Period"), the
Employee will not (whether as an officer, director, partner, proprietor,
investor, associate, employee, consultant, adviser, public relations or
advertising representative or otherwise), directly or indirectly, be engaged in
the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 6 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon the
Employer; or
(ii) breach his obligations under this Agreement and fail to cure such
breach within five (5) days after written notice thereof; or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice; or
(v) engage in any other acts of gross misconduct against employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year period,
on each expiration date, unless either party shall have theretofore given at
least 90 days prior written notice of termination. Any extension shall be on the
terms in force immediately preceding said extension, unless otherwise agreed in
writing.
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Employer:
----------- -----------
Xxxxx Xxx Xxxxx AM General Corporation
53199 Xxxxxx Court 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
6
with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Employer shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Employer.
7
14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
____________________________ By ________________________
Witness: EMPLOYEE:
____________________________ ___________________________
Xxxxx Xxx Xxxxx
8
SCHEDULE A
XXXXX XXX XXXXX/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
-----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Executive Wellness Program
9
EMPLOYMENT AGREEMENT
--------------------
(XXXX)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXXXX X. XXXX ("Employee").
W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Senior Vice
President, Engineering and Product Development. The Employee hereby accepts such
employment and agrees to devote all of his business time and his best efforts to
the business of Employer and as may be necessary to perform his duties in
accordance with the policies and budgets established from time to time by
Employer and its Board of Directors and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of Two Hundred Five Thousand ($205,000)
Dollars per year (or such greater amount as Employer may from time to time
determine), payable periodically in accordance with Employer's usual executive
payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to Seventy-Five
Thousand ($75,000) Dollars for each fiscal year (ending October 31st) provided
that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and actually
engaged in performing duties, at the close of such fiscal
year, and
(iii) Employer's financial statements for such year, as prepared by
its independent public accountants, show a positive net income
available for common stock, as determined in accordance with
generally accepted accounting principles consistently applied,
but after adding back any non-cash charges for post-employment
benefits and before this bonus and bonuses provided for in all
other executive employment agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
2 (c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not in default of
this Agreement as provided in Section 9, Employer shall continue Employee's
salary as defined in Section 2(a) for the remaining period of the Employment
Term, but in no case less than twelve months following termination of
employment. The provisions of Sections 1.0 through 4.0 of the AM General Salary
Continuation Plan shall not have application in the event of such a termination
of employment. In the event of a termination of employment under this
Subsection, Employee shall not be entitled to receive any annual bonus provided
for in Section 2(b) or to any proration thereof. The provisions of this
Subsection shall not apply in the event of Early Termination of Employment Term
on Disability or Death as provided by Section 5.
2
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be in the Livonia, Michigan area.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of
illness or other incapacity (including incapacity because of substance abuse) to
render to the Employer the services required of him hereunder for a period of
two months (during which the Employer shall continue the Employee's compensation
at the rates herein provided), the Employer may, in its discretion, give one
month notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $75,000 annual bonus provided for in
Section 2(b) prorated for the period from the
3
start of the fiscal year to date of termination, provided that the
requirements of Subsections 2(b)(i) and (iii) have been met for
such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Employer (including, without limitation, business
plans, product design and specifications, financial, engineering and marketing
information and information about costs, manufacturing methods, suppliers and
customers) constitute "Employer Confidential Information." Employee acknowledges
that he will have access to and knowledge of Employer Confidential Information,
and that improper use or revelation of same by the Employee during or after the
termination of his employment by the Employer could cause serious injury to the
business of the Employer. Accordingly, the Employee agrees that he will forever
keep secret and inviolate all Employer Confidential Information which comes into
his possession, and that he will not use the same for his own private benefit,
or directly or indirectly for the benefit of others, and that he will not
disclose such Employer Confidential Information to any other person except as
necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and for two
years after the end of the Employment Term (the "Non-Competition Period"), the
Employee will not (whether as an officer, director, partner, proprietor,
investor, associate, employee, consultant, adviser, public relations or
advertising representative or otherwise), directly or indirectly, be engaged in
the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 6 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon the
Employer; or
(ii) breach his obligations under this Agreement and fail to cure such
breach within five (5) days after written notice thereof; or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice; or
(v) engage in any other acts of gross misconduct against employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year period,
on each expiration date, unless either party shall have theretofore given at
least 90 days prior written notice of termination. Any extension shall be on the
terms in force immediately preceding said extension, unless otherwise agreed in
writing.
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Employer:
----------- -----------
Xxxxxx X. Xxxx AM General Corporation
0000 Xxxxx Xxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
6
with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Employer shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Employer.
7
14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
___________________________ By ________________________
Witness: EMPLOYEE:
___________________________ ___________________________
Xxxxxx X. Xxxx
8
SCHEDULE A
XXXXXX X. XXXX/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
-----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Executive Wellness Program
9
EMPLOYMENT AGREEMENT
(O'REAR)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXXX XXXXX O'REAR ("Employee").
W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Vice President
and General Counsel. The Employee hereby accepts such employment and agrees to
devote all of his business time and his best efforts to the business of Employer
and as may be necessary to perform his duties in accordance with the policies
and budgets established from time to time by Employer and its Board of Directors
and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of One Hundred Fifty Thousand ($150,000)
Dollars per year (or such greater amount as Employer may from time to time
determine), payable periodically in accordance with Employer's usual executive
payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to Fifty Thousand
($50,000) Dollars for each fiscal year (ending October 31st) provided that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and
actually engaged in performing duties, at the close of such
fiscal year, and
(iii) Employer's financial statements for such year, as prepared by
its independent public accountants, show a positive net
income available for common stock, as determined in
accordance with generally accepted accounting principles
consistently applied, but after adding back any non-cash
charges for post-employment benefits and before this bonus
and bonuses provided for in all other executive employment
agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
(c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not in default of
this Agreement as provided in Section 9, Employer shall continue Employee's
salary as defined in Section 2(a) for the remaining period of the Employment
Term, but in no case less than twelve months following termination of
employment. The provisions of Sections 1.0 through 4.0 of the AM General Salary
Continuation Plan shall not have application in the event of such a termination
of employment. In the event of a termination of employment under this
Subsection, Employee shall not be entitled to receive any annual bonus provided
for in Section 2(b) or to any proration thereof. The provisions of this
Subsection shall not apply in the event of Early Termination of Employment Term
on Disability or Death as provided by Section 5.
2
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be located in the South Bend, Indiana area.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of illness
or other incapacity (including incapacity because of substance abuse) to render
to the Employer the services required of him hereunder for a period of two
months (during which the Employer shall continue the Employee's compensation at
the rates herein provided), the Employer may, in its discretion, give one month
notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $50,000 annual bonus provided for in
Section 2(b) prorated for the period from the
3
start of the fiscal year to date of termination, provided that the
requirements of Subsections 2(b)(i) and (iii) have been met for
such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Employer (including, without limitation, business
plans, product design and specifications, financial, engineering and marketing
information and information about costs, manufacturing methods, suppliers and
customers) constitute "Employer Confidential Information." Employee acknowledges
that he will have access to and knowledge of Employer Confidential Information,
and that improper use or revelation of same by the Employee during or after the
termination of his employment by the Employer could cause serious injury to the
business of the Employer. Accordingly, the Employee agrees that he will forever
keep secret and inviolate all Employer Confidential Information which comes into
his possession, and that he will not use the same for his own private benefit,
or directly or indirectly for the benefit of others, and that he will not
disclose such Employer Confidential Information to any other person except as
necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and for two
years after the end of the Employment Term (the "Non-Competition Period"), the
Employee will not (whether as an officer, director, partner, proprietor,
investor, associate, employee, consultant, adviser, public relations or
advertising representative or otherwise), directly or indirectly, be engaged in
the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 6 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon the
Employer; or
(ii) breach his obligations under this Agreement and fail to cure such
breach within five (5) days after written notice thereof; or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties
hereunder and continue in his failure after written
notice; or
(v) engage in any other acts of gross misconduct against
employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year
period, on each expiration date, unless either party shall have theretofore
given at least 90 days prior written notice of termination. Any extension shall
be on the terms in force immediately preceding said extension, unless otherwise
agreed in writing
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or
by certified or registered mail, telecopy, or recognized overnight delivery
service (such as Federal Express) prepaid as follows:
To Employee: To Employer:
------------ ------------
Xxxxx Xxxxx O'Rear AM General Corporation
00000 Xxxxxxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
6
with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of
any of the terms, conditions, and provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and said
terms, conditions, and provisions shall remain in full force and effect. No
waiver of any term or condition of this Agreement on the part of the Employer
shall be effective for any purposes whatsoever unless such waiver is in writing
and signed by the Employer.
7
14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
___________________________
By ________________________
Witness: EMPLOYEE:
___________________________ ___________________________
Xxxxx Xxxxx O'Rear
8
SCHEDULE A
Xxxxx Xxxxx O'Rear/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
-----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Executive Wellness Program
9
EMPLOYMENT AGREEMENT
(XXXXXX)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXXXX X. XXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Vice President -
Corporate Quality Assurance. The Employee hereby accepts such employment and
agrees to devote all of his business time and his best efforts to the business
of Employer and as may be necessary to perform his duties in accordance with the
policies and budgets established from time to time by Employer and its Board of
Directors and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of One Hundred Thirty-Five Thousand
($135,000) Dollars per year (or such greater amount as Employer may from time to
time determine), payable periodically in accordance with Employer's usual
executive payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to Forty Thousand
($40,000) Dollars for each fiscal year (ending October 31/st/) provided that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and
actually engaged in performing duties, at the close of such
fiscal year, and
(iii) Employer's financial statements for such year, as prepared
by its independent public accountants, show a positive net
income available for common stock, as determined in
accordance with generally accepted accounting principles
consistently applied, but after adding back any non-cash
charges for post-employment benefits and before this bonus
and bonuses provided for in all other executive employment
agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
2 (c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not in default of
this Agreement as provided in Section 9, Employer shall continue Employee's
salary as defined in Section 2(a) for the remaining period of the Employment
Term, but in no case less than twelve months following termination of
employment. The provisions of Sections 1.0 through 4.0 of the AM General Salary
Continuation Plan shall not have application in the event of such a termination
of employment. In the event of a termination of employment under this
Subsection, Employee shall not be entitled to receive any annual bonus provided
for in Section 2(b) or to any proration thereof. The provisions of this
Subsection shall not apply in the event of Early Termination of Employment Term
on Disability or Death as provided by Section 5.
2
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be located in the South Bend, Indiana area.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because
of illness or other incapacity (including incapacity because of substance abuse)
to render to the Employer the services required of him hereunder for a period of
two months (during which the Employer shall continue the Employee's compensation
at the rates herein provided), the Employer may, in its discretion, give one
month notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $40,000 annual bonus provided for in
Section 2(b) prorated for the period from the
3
start of the fiscal year to date of termination, provided that
the requirements of Subsections 2(b)(i) and (iii) have been met
for such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Employer (including, without limitation, business
plans, product design and specifications, financial, engineering and marketing
information and information about costs, manufacturing methods, suppliers and
customers) constitute "Employer Confidential Information." Employee acknowledges
that he will have access to and knowledge of Employer Confidential Information,
and that improper use or revelation of same by the Employee during or after the
termination of his employment by the Employer could cause serious injury to the
business of the Employer. Accordingly, the Employee agrees that he will forever
keep secret and inviolate all Employer Confidential Information which comes into
his possession, and that he will not use the same for his own private benefit,
or directly or indirectly for the benefit of others, and that he will not
disclose such Employer Confidential Information to any other person except as
necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and for two
years after the end of the Employment Term (the "Non-Competition Period"), the
Employee will not (whether as an officer, director, partner, proprietor,
investor, associate, employee, consultant, adviser, public relations or
advertising representative or otherwise), directly or indirectly, be engaged in
the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 6 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon
the Employer; or
(ii) breach his obligations under this Agreement and fail to cure
such breach within five (5) days after written notice thereof;
or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice; or
(v) engage in any other acts of gross misconduct against employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year period,
on each expiration date, unless either party shall have theretofore given at
least 90 days prior written notice of termination. Any extension shall be on the
terms in force immediately preceding said extension, unless otherwise agreed in
writing.
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Employer:
----------- -----------
Xxxxxx X. Xxxxxx AM General Corporation
0000 Xxxxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
6
with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Employer shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Employer.
7
14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
____________________ By _________________________________
Witness: EMPLOYEE:
____________________ ____________________________________
Xxxxxx X. Xxxxxx
8
SCHEDULE A
XXXXXX X. XXXXXX/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Executive Wellness Program
9
EMPLOYMENT AGREEMENT
(XXXX)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXX XXXX ("Employee").
W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Vice President -
Washington Operations. The Employee hereby accepts such employment and agrees to
devote all of his business time and his best efforts to the business of Employer
and as may be necessary to perform his duties in accordance with the policies
and budgets established from time to time by Employer and its Board of Directors
and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of One Hundred Thirty-Five Thousand
($135,000) Dollars per year (or such greater amount as Employer may from time to
time determine), payable periodically in accordance with Employer's usual
executive payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to Twenty-Five
Thousand ($25,000) Dollars for each fiscal year (ending October 31st) provided
that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and actually
engaged in performing duties, at the close of such fiscal year,
and
(iii) Employer's financial statements for such year, as prepared by
its independent public accountants, show a positive net income
available for common stock, as determined in accordance with
generally accepted accounting principles consistently applied,
but after adding back any non-cash charges for post-employment
benefits and before this bonus and bonuses provided for in all
other executive employment agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
(c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not in
default of this Agreement as provided in Section 9, Employer shall
continue Employee's salary as defined in Section 2(a) for the
remaining period of the Employment Term, but in no case less than
twelve months following termination of employment. The provisions of
Sections 1.0 through 4.0 of the AM General Salary Continuation Plan
shall not have application in the event of such a termination of
employment. In the event of a termination of employment under this
Subsection, Employee shall not be entitled to receive any annual
bonus provided for in Section 2(b) or to any proration thereof. The
provisions of this Subsection shall not apply in the event of Early
Termination of Employment Term on Disability or Death as provided by
Section 5.
2
3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be located in the Washington DC area.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of
illness or other incapacity (including incapacity because of substance abuse) to
render to the Employer the services required of him hereunder for a period of
two months (during which the Employer shall continue the Employee's compensation
at the rates herein provided), the Employer may, in its discretion, give one
month notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $25,000 annual bonus provided for in
Section 2(b) prorated for the period from the
3
start of the fiscal year to date of termination, provided that the
requirements of Subsections 2(b)(i) and (iii) have been met for
such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Employer (including, without limitation, business
plans, product design and specifications, financial, engineering and marketing
information and information about costs, manufacturing methods, suppliers and
customers) constitute "Employer Confidential Information." Employee acknowledges
that he will have access to and knowledge of Employer Confidential Information,
and that improper use or revelation of same by the Employee during or after the
termination of his employment by the Employer could cause serious injury to the
business of the Employer. Accordingly, the Employee agrees that he will forever
keep secret and inviolate all Employer Confidential Information which comes into
his possession, and that he will not use the same for his own private benefit,
or directly or indirectly for the benefit of others, and that he will not
disclose such Employer Confidential Information to any other person except as
necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and for two
years after the end of the Employment Term (the "Non-Competition Period"), the
Employee will not (whether as an officer, director, partner, proprietor,
investor, associate, employee, consultant, adviser, public relations or
advertising representative or otherwise), directly or indirectly, be engaged in
the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 6 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon
the Employer; or
(ii) breach his obligations under this Agreement and fail to cure
such breach within five (5) days after written notice thereof;
or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice; or
(v) engage in any other acts of gross misconduct against employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year period,
on each expiration date, unless either party shall have theretofore given at
least 90 days prior written notice of termination. Any extension shall be on the
terms in force immediately preceding said extension, unless otherwise agreed in
writing
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Employer:
----------- -----------
Xxxx Xxxx AM General Corporation
00000 Xxxxxxxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
6
with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Employer shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Employer.
7
14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
________________ By _________________________________
Witness: EMPLOYEE:
________________ ____________________________________
Xxxx Xxxx
8
SCHEDULE A
XXXX XXXX/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
-----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Executive Wellness Program
9
EMPLOYMENT AGREEMENT
(WUSLICH)
AGREEMENT effective as of November 1, 2001, between AM GENERAL CORPORATION
("Employer"), and XXXX X. XXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS Employer desires to employ Employee on the terms hereof, and
Employee desires to accept employment on such terms;
In consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Term and Duties.
Commencing on the date hereof and continuing until October 31, 2004, and
thereafter from year to year unless sooner terminated as herein provided (the
"Employment Term"), the Employer hereby employs the Employee as Vice President -
Human Resources. The Employee hereby accepts such employment and agrees to
devote all of his business time and his best efforts to the business of Employer
and as may be necessary to perform his duties in accordance with the policies
and budgets established from time to time by Employer and its Board of Directors
and President.
2. Compensation.
For Employee's services hereunder Employer shall pay to Employee
(a) a salary at the rate of One Hundred Twenty-Five Thousand
($125,000) Dollars per year (or such greater amount as Employer may from time to
time determine), payable periodically in accordance with Employer's usual
executive payroll payment procedures; plus
(b) the opportunity to earn an annual bonus of up to Thirty Thousand
($30,000) Dollars for each fiscal year (ending October 31st) provided that
(i) Employee achieves Employer's performance objectives to the
satisfaction of employer;
1
(ii) Employee is in the active employment of Employer, and
actually engaged in performing duties, at the close of such
fiscal year, and
(iii) Employer's financial statements for such year, as prepared
by its independent public accountants, show a positive net
income available for common stock, as determined in
accordance with generally accepted accounting principles
consistently applied, but after adding back any non-cash
charges for post-employment benefits and before this bonus
and bonuses provided for in all other executive employment
agreements.
Such annual bonus for each year shall be payable within 15 days after the
Employer's accountants have completed preparation of the Employer's financial
statement for such year. The determination of such accountants as to the amount
of the net income, as shown in such statements shall be conclusive on the
parties. Eligibility for this executive performance based bonus does not detract
from Employee's participation in the Profit Sharing Plan available to all
salaried employees.
(c) In the event Employee's employment is terminated by the Employer
prior to the end of the Employment Term, and the Employee is not
in default of this Agreement as provided in Section 9, Employer
shall continue Employee's salary as defined in Section 2(a) for
the remaining period of the Employment Term, but in no case less
than twelve months following termination of employment. The
provisions of Sections 1.0 through 4.0 of the AM General Salary
Continuation Plan shall not have application in the event of such
a termination of employment. In the event of a termination of
employment under this Subsection, Employee shall not be entitled
to receive any annual bonus provided for in Section 2(b) or to
any proration thereof. The provisions of this Subsection shall
not apply in the event of Early Termination of Employment Term on
Disability or Death as provided by Section 5.
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3. Place of Employment.
The Employee's regular place of employment during the Employment Term shall
be located in the South Bend, Indiana area.
4. Travel; Expenses.
The Employee shall engage in such travel as may reasonably be required in
connection with the performance of his duties.
All reasonable travel and other expenses incurred by the Employee (in
accordance with the policies and the budget of the Employer established from
time to time) in carrying out his duties hereunder will be reimbursed by the
Employer on presentation to it of expense accounts and appropriate documentation
in accordance with the customary procedures of the Employer for reimbursement of
executive expenses.
5. Early Termination of Employment Term on Disability or Death.
(a) If during the Employment Term, the Employee fails because of
illness or other incapacity (including incapacity because of substance abuse) to
render to the Employer the services required of him hereunder for a period of
two months (during which the Employer shall continue the Employee's compensation
at the rates herein provided), the Employer may, in its discretion, give one
month notice of termination of the Employment Term (during which the Employee's
compensation shall likewise be continued), and if the Employee shall not resume
full performance of his duties within such one-month period, the Employment Term
shall terminate at the expiration thereof, provided that any such termination
shall not affect the right of the Employee (or his estate) to continue to
receive benefits under any disability insurance plan covering the Employee which
is in effect at the date of termination.
(b) The Employment Term shall end upon the death of the Employee.
(c) In the event of termination for disability or death, the Employer
shall pay the Employee the $30,000 annual bonus provided for in
Section 2(b) prorated for the period from the
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start of the fiscal year to date of termination, provided that
the requirements of Subsections 2(b)(i) and (iii) have been met
for such fiscal year.
6. Confidentiality; Competition.
(a) For the purposes hereof, all confidential information about the
business and affairs of the Employer (including, without limitation, business
plans, product design and specifications, financial, engineering and marketing
information and information about costs, manufacturing methods, suppliers and
customers) constitute "Employer Confidential Information." Employee acknowledges
that he will have access to and knowledge of Employer Confidential Information,
and that improper use or revelation of same by the Employee during or after the
termination of his employment by the Employer could cause serious injury to the
business of the Employer. Accordingly, the Employee agrees that he will forever
keep secret and inviolate all Employer Confidential Information which comes into
his possession, and that he will not use the same for his own private benefit,
or directly or indirectly for the benefit of others, and that he will not
disclose such Employer Confidential Information to any other person except as
necessary in pursuance of his duties.
(b) The Employee agrees that during the Employment Term and for two
years after the end of the Employment Term (the "Non-Competition Period"), the
Employee will not (whether as an officer, director, partner, proprietor,
investor, associate, employee, consultant, adviser, public relations or
advertising representative or otherwise), directly or indirectly, be engaged in
the business of manufacturing or assembly of trucks or component parts in any
part of the United States (which the parties acknowledge is the Employer's
trading area). For purposes of the preceding sentence, the Employee shall be
deemed to be engaged in any business which any person for whom he shall perform
services is engaged. Nothing herein contained shall be deemed to prohibit the
Employee from owning, as a passive investment, a security of any issuer which is
not a supplier, vendor, customer or competitor of the Employer. In situations
where an involuntary termination of the Employee may occur, the provisions
provided for in this subsection shall not be applicable. However, in situations
where an involuntary termination is a result of a default of employee under the
provisions of Paragraph 9, the provisions of this paragraph shall be applicable.
4
(c) Within the terms of this Agreement, it is intended to limit
disclosure and competition by the Employee to the maximum extent permitted by
law. If it shall be finally determined by any court of competent jurisdiction
ruling on this Agreement that the scope or duration of any limitation contained
in this paragraph 6 is too extensive to be legally enforceable, then the parties
hereby agree that the scope and duration (not greater than that provided for
herein) of such limitation shall be the maximum scope and duration which shall
be legally enforceable and the Employee hereby consents to the enforcement of
such limitation as so modified.
(d) The Employee acknowledges that any violation by him of the
provisions of this paragraph 6 could cause serious and irreparable damages to
the Employer. He further acknowledges that it might not be possible to measure
such damages in money. Accordingly, the Employee further acknowledges that, in
the event of a breach or threatened breach by him of the provisions of this
paragraph 6, the Employer may seek, in addition to any other rights or remedies,
including money damages, an injunction or restraining order, restraining the
Employee from doing or continuing to do or perform any acts constituting such
breach or threatened breach.
7. Benefits.
The Employer agrees to provide to the Employee the benefits listed in
Schedule A hereto.
8. Employee's Representation.
Employee hereby represents to the Employer that he has full lawful right
and power to enter into this Agreement and carry out his duties hereunder, and
that same will not constitute a breach of or default under any employment,
confidentiality, non-competition or other agreement by which he may be bound.
9. Default by Employee.
If the Employee shall:
(i) commit an act of dishonesty against the Employer or fraud upon
the Employer; or
(ii) breach his obligations under this Agreement and fail to cure
such breach within five (5) days after written notice thereof;
or
(iii) be convicted of a crime involving moral turpitude; or
5
(iv) fail or neglect diligently to perform his duties hereunder and
continue in his failure after written notice; or
(v) engage in any other acts of gross misconduct against employer
then, and in any such case, the Employer may terminate the employment of the
Employee hereunder and, in the event of any such termination, the Employee shall
no longer have any right to any of the benefits (including future salary
payments) which would otherwise have accrued after such termination.
10. Successors.
The rights, benefits, duties and obligations under this Agreement shall
inure to and be binding upon the Employer, its successors and assigns and upon
the Employee and his legal representatives, legatees and heirs. It is
specifically understood, however, that this Agreement may not be transferred or
assigned by the Employee. The Employer may assign any of its rights and
obligations hereunder to any subsidiary or affiliate of the Employer, or to a
successor or survivor resulting from a merger, consolidation, sale of assets or
stock or other corporate reorganization, on condition that the assignee shall
assume all of the Employer's obligations hereunder and it is agreed that such
successor or surviving corporation shall continue to be obligated to perform the
provisions of this Agreement.
11. Automatic Roll-Over
The Agreement shall automatically extend for an additional one year period,
on each expiration date, unless either party shall have theretofore given at
least 90 days prior written notice of termination. Any extension shall be on the
terms in force immediately preceding said extension, unless otherwise agreed in
writing
12. Notices.
Notices hereunder shall be in writing and shall be sent by telegraph or by
certified or registered mail, telecopy, or recognized overnight delivery service
(such as Federal Express) prepaid as follows:
To Employee: To Employer:
----------- -----------
Xxxx X. Xxxxxxx AM General Corporation
00000 Xxxxxxxx Xxxx 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attention: President
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with copy to: The Renco Group, Inc.
------------
00 Xxxxxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
and shall be deemed to have been given when telecopied to the addressee or three
days after placed in the mail or the second business day following delivery to a
recognized overnight delivery service (such as Federal Express) or a telegraph
company, prepaid and properly addressed. Notices to the Employee may also be
delivered to him personally. Notices of change of address shall be given as
provided above, but shall be effective only when actually received.
13. Waiver.
The failure of either party to insist upon the strict performance of any of
the terms, conditions, and provisions of this Agreement shall not be construed
as a waiver or relinquishment of future compliance therewith, and said terms,
conditions, and provisions shall remain in full force and effect. No waiver of
any term or condition of this Agreement on the part of the Employer shall be
effective for any purposes whatsoever unless such waiver is in writing and
signed by the Employer.
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14. Entire Agreement; Governing Law.
There are no oral or written understandings concerning the Employee's
employment by Employer outside of this Agreement. This Agreement may not be
modified except by a writing signed by the parties hereto. This Agreement
supersedes any and all prior employment agreements or understandings. This
Agreement is made under; and shall be construed in accordance with, the laws of
Indiana, applicable to agreements to be performed wholly within that state.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
Attest: EMPLOYER:
AM GENERAL CORPORATION
_______________ By _________________________________
Witness: EMPLOYEE:
_______________ ____________________________________
Xxxx X. Xxxxxxx
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SCHEDULE A
XXXX X. XXXXXXX/AM GENERAL CORPORATION
Employment Agreement
Effective November 1, 2001
Employee Benefits
-----------------
*AMG Retirement Plan
*AMG ERISA Excess Plan
*AMG Capital/Accumulation Plan
*AMG Profit Sharing Plan
*AMG Salary Continuation Plan
(Section 5.0 only)
*AMG Medical and Dental Care Plans
*AMG Educational Reimbursement Plan
*AMG Vacation Plan
*AMG Health Care Plan
*AMG Disability Income Plan
*AMG Cafeteria Plan
. Life Insurance
. Benefit Bank
. Optional Disability Income
. Optional Vacation
*AMG Executive Lease Vehicle Program
*AMG Executive Wellness Program
9
